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PORTSIDE  August 2010, Week 2

PORTSIDE August 2010, Week 2

Subject:

Google's Net Neutrality Collapse

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Fri, 13 Aug 2010 21:51:11 -0400

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A Paper Trail of Betrayal: Google's Net Neutrality Collapse

By Matthew Lasar |
Ars Technica
Updated 8/11/10
http://arstechnica.com/telecom/news/2010/08/a-paper-trail-of-betrayal-googles-net-neutrality-collapse.ars

Like the rest of the technology world, we're wondering
why Google has chosen to ally itself with Verizon,
issuing a set of joint net neutrality recommendations
that critics charge would significantly weaken the
Federal Communications Commission's ability to protect
the open Internet.

The whole approach just seemed so at odds with Google's
past fiery statements on the issue. Maybe we misread the
search engine giant's previous statements, we worried.
Until this month, wasn't Google one of net neutrality's
biggest advocates?

So this morning we re-read three Google documents again-
filings with the FCC going back to 2007, shortly after
Google's Eric Schmidt first asked the public to "take
action to protect Internet freedom."

Comparing "Google Then" with "Google Now," the
differences seem pretty stark. Google Then raised strong
objections to three major points in the Google/Verizon
statement that Google Now endorses.

1. Rules versus principles

The core of the Google/Verizon proposal is that ISPs
would adhere to a set of "principles"-a non-
discrimination principle prominent among them:

     In providing broadband Internet access service, a
     provider would be prohibited from engaging in undue
     discrimination against any lawful Internet content,
     application, or service in a manner that causes
     meaningful harm to competition or to users.
     Prioritization of Internet traffic would be
     presumed inconsistent with the non-discrimination
     standard, but the presumption could be rebutted.

But when it comes to enforcing this ban against what the
Google/Verizon announcement called "bad actors," the
plan recommends that the FCC do so through "case-by-case
adjudication" rather than pre-existing, detailed rules.

The Commission "would have no rulemaking authority with
respect to those provisions," the proposal continues.
"Parties would be encouraged to use nongovernmental
dispute resolution processes established by independent,
widely-recognized Internet community governance
initiatives, and the FCC would be directed to give
appropriate deference to decisions or advisory opinions
of such groups."

That's what Google Now suggests, but three years ago
Google Then protested the agency's lack of solid, clear
regulations against packet discrimination.

"This Commission to date has decided that no regulatory
rules are necessary to address concerns about packet
discrimination," Google wrote in 2007. "Instead, the
agency promises to stand watch, and react only when
provoked by 'bad acts.' Of course, without knowing what
kinds of market behavior would trigger the FCC's
involvement-or whether the FCC even possesses the
requisite legal authority to remedy the situation-the
rest of us are left with serious misgivings that this
approach will prove effective at preserving an open and
generative Internet."

Google warned that this approach had a variety of
"downsides"-"broad 'principles' without consistent,
enforceable rules risk a significant chilling effect on
innovators who rely upon regulatory clarity to assure
the existence of Internet platforms without artificial
barriers," the firm's lawyers charged at the time.

They're not saying it anymore.

2. Priority access

As already noted, the Google/Verizon manifesto includes
language against prioritizing online data, but with
significant exceptions. "Prioritization of Internet
traffic would be presumed inconsistent with the non-
discrimination standard, but the presumption could be
rebutted," the statement explains [our italics].

The plan also lists various reasonable network
management practices that it defines as "technically
sound." These include efforts to "to ensure service
quality to a subscriber," and "to prioritize general
classes or types of Internet traffic, based on latency;
or otherwise to manage the daily operation of its
network."

Lastly, the proposal recommends creating a whole
category of "additional or differentiated services" that
"would have to be distinguishable in scope and purpose
from broadband Internet access service, but could make
use of or access Internet content, applications or
services and could include traffic prioritization."

It is unclear yet what the "additional services" would
be, but Google Then could not have been more suspicious
of these ideas. The company conceded in 2007 that two
types of prioritization schemes could be
justified-"differentiating based on the type of
applications and/or the quantity of bandwidth purchased
by the consumer."

Beyond those, however, Google strongly objected to
prioritizing quality of service (QoS) network management
systems designed to deliver predictable packet flow.

"Simply put, QoS appears to be unnecessary," the company
wrote, "the proverbial solution in search of a problem.
As expert researchers and engineers have determined
after years of analysis, there is no network problem
allegedly solved by prioritization that cannot also be
solved by additional bandwidth."

QoS, Google charged, would function as a disincentive
for ISPs to further build out their networks. It
wouldn't even deliver promised results, unless the big
ISPs agreed to complex, standardized end-to-end
prioritization agreements.

Broadband providers using the technique, the company
warned, "have the incentives and the means to create a
closed private network that consigns Internet content
and applications to a relatively slow, bandwidth-starved
portion of the broadband connection. Obviously it will
be increasingly difficult for providers of Internet-
based applications such as video content to compete
effectively against the broadband providers in this kind
of 'two-tiered' broadband network."

As for those "additional and differentiated services,"
as recently as April of this year, Google took exception
to a similar proposal coming from the FCC (which by now
had recommended rules)-to create a "managed services"
category exempt from the agency's net neutrality
proposals.

"If a last-mile broadband provider dedicates only a
small slice of its broadband capacity to the open
Internet while reserving the vast majority of the
network’s capacity for proprietary 'specialized'
services, the public interest would be compromised,"
Google told the FCC in January.

This idea should be subject to further study, the
company advised in April. Perhaps a Notice of Inquiry
should be launched.

"In the interim, however, such services should not
receive a 'free pass' around the Communications Act,"
Google wrote. "Designating any particular offering as a
'managed' or 'specialized' service cannot cause it
automatically to fall outside of the Commission's
oversight and authority."

That was mere months ago, yet this week, Google
explicitly laid the groundwork for all of these ideas to
get written into US law.

3. Wireless exemption

Finally, there can be no question as to what Google Then
would have thought of Google/Verizon's proposal to
exempt wireless broadband providers from any non-
discrimination principles. Indeed, BusinessWeek even ran
a Google-focused piece in September 2009 called "Will
Net Neutrality Go Wireless?"

But according to this week's proposal:

Because of the unique technical and operational
characteristics of wireless networks, and the
competitive and still-developing nature of wireless
broadband services, only the transparency principle
would apply to wireless broadband at this time.

What's all this about the "unique" character of wireless
networks? Rob Frieden, a respected Penn State telecoms
scholar, noted this week that "the rationale for
exempting wireless does not pass the smell test... The
technical and operational aspects of wireless strongly
necessitate the non-discrimination requirement."

Back in April, Google agreed. It strongly lobbied
against this idea and the logic behind it. Wireless
companies (like Verizon) that seek a nondiscrimination
exemption based on the allegedly "competitive nature" of
the wireless sector, "fail to acknowledge some relevant
facts," the company wrote.

The number of mobile wireless subscribers may be
increasing, but "the number of service providers
actually is contracting," with AT&T and Verizon
controlling over 60 percent of the national wireless
market. "Further, these two providers' wireless, video,
voice, and data offerings are substantially vertically
integrated with-and their motivations to discriminate
are tied to-their affiliates' wireline networks," Google
added.

It went on:

     More importantly, wireless broadband access
     providers do not acknowledge the wireless
     industry's record of dubious practices-a list that
     continues to grow. For example, the cable industry
     notes that "providers of wireless Internet access
     unabashedly engage in outright blocking." Deep
     packet inspection "has been deployed far and wide"
     by various wireless last mile network operators.
     Further, the contractual terms imposed by major
     wireless carriers purport to prohibit the use of
     peer-to-peer applications, Web broadcasts, server
     or host applications, tethering, and the use of
     wireless as a substitute for wired broadband.
     Nonetheless, wireless network operators' practices
     are not transparent, the government to date has
     declined to exercise its rightful oversight
     authority, and effective enforcement mechanisms to
     address abuses do not exist.

Wireless Internet companies "in particular fail" to
honor the philosophy inherent in the FCC's proposed
nondiscrimination rule, the firm charged.

"Notwithstanding any technical differences between
wireline and wireless networks that may justify
different application of the reasonable network
management exception on a case-by-case basis," Google
Then insisted, "the record is clear that all last-mile
broadband network providers have common incentives to
discriminate in the absence of an effective and
enforceable rule protecting consumers and competitors."

But between April and August, the wireless market
apparently became "competitive." As for the wireless
industry's bad acts, so long as those are disclosed,
Google has made its peace with them.

That was then

We have every confidence that Google Now will insist
that its present stance represents a solid extension of
the company's call for an open Internet.

"It is imperative that we find ways to protect the
future openness of the Internet and encourage the rapid
deployment of broadband," Google and Verizon declared in
their statement announcement.

But the sheer volume of earlier commentary penned by
Google that runs contrary to its newest recommendations
isn't going to disappear down the memory hole.

Advocates of net neutrality will look at these documents
and charge betrayal. Opponents will cheer a powerful
company coming to its senses. Scholars will have to
decide whether this week saw one of the most remarkable
volte-faces in telecommunications policy history.

_____________________________________________

Portside aims to provide material of interest
to people on the left that will help them to
interpret the world and to change it.

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